ADM.] THE PEERLESS-THE STRATHALLAN-DIGEST OF MARITIME LAW CASES, not at all to blame or responsible for the measures pursned, as the ship was in charge of the pilot, whose orders by them were implicitly and promptly obeyed. Some witnesses were examined vivâ voce. Deane, QC. and Spinks appeared for the owner of the dummies, Addams, Q.C. and Twiss, Q.C. for the Castor. The COURT, without formally addressing the Elder Brethren, said:-The Trinity Masters are clearly of opinion that the master and crew of the Castor are not in the slightest degree to blame for this collision, and I entirely concur in that. The consequence of that opinion is that, whether the collision was the result of accident, or the fault of the pilot, as the damage is not attributable to the master and crew of this ship, I must pronounce against this action with costs. Wednesday, April 17. THE PEERLESS. Damage-Reference to registrar and merchants—Costs. On a reference to the registrar and merchants in a damage cause, more than one fourth, and less than one-third of the plts.' claim having been disallowed: Held, that each party must pay his own costs. This was a cause of damage, and was brought by the European and American Steam Shipping Company (Limited), the owners of the screw-steamer Jason, against the ship Peerless and her owners. The collision took place in the river Hooghly, near Calcutta. On the 30th Jan. 1860 the Court pronounced in favour of the plts., and upon appeal to the Judicial Committee of the Privy Council, that decision was affirmed. Upon a reference to the registrar and merchants, the claim made by the plts. amounted to 828. 38. 10d., and the registrar by his report allowed the sum of 603. 14s. 2d. The Queen's Advocate, on behalf of the plts., moved for the costs of the reference. reference. On a reference of the accounts in a master's suit for wages, more than one-half of the owner's claim of set-off, and nearly two-thirds of the master's claim, were disallowed. Charges of immorality were made The court, by the owners, but not sustained. considering that the master had at the utmost been guilty only of extravagance, allowed him his costs of the reference. This was a cause of wages, and was promoted by W. R. Williamson, late master of the said vessel Strathallan, against Edward Harwood, of Watersladecourt, in the county of Middlesex, her owner. A claim and proofs were filed by the plt., and a counter-claim and proofs by the defts., the counter-claim and proofs of the latter consisting chiefly of charges of a very gross character against the master. There were also accusations against him of having wasted the ship's sto res. | The master's wages contracted for were at the rate of 2001. per annum, and the accounts investigated involved sums of money amounting altogether to 45247. The total claimed by the master amounted to 3311. 16s. 2d., of which the registrar allowed the sum of 1357. 2s. 8d. The set-off claimed by the owner amounted to 5024, which the registrar by his report | [ADM. reduced to the sum of 1961. 138 6d. The charges of immorality were withdrawn. The Queen's Advocate, on behalf of the plt., moved for the costs of the reference. V. Lushington contra. The COURT considered that the master had at the utmost been guilty of extravagance as to the ship's stores, and held that he was entitled to his costs of the reference. Pritchard and Sons, proctors for the plt. DIGEST OF MARITIME LAW CASES (EXCEPTING SALVAGE AWARDS.) FROM 1837 TO 1860. (Continued from Vol. 5, p. 775.) [N.B.-The LAW TIMES REPORTS, N. 8., will give all the Maritime Law Cases decided from Michaelmas Term 1859. This Digest will contain all (except the Salvage Awards) decided from 1837 to Nov. 1859. A Digest of the Salvage Cases during the same period is appearing in the LAW TIMES.] CONSIGNEE. 893. A charter-party having been entered into, whereby it was stipulated that the freight was to be paid upon delivery of the cargo, the captain delivered part of the cargo, but withheld the rest of it until the consignees (to whom the bill of lading, which made the freight payable as per charterparty, was indorsed) should pay the freight. The ship was detained in consequence of the refusal of the consignees to pay the freight until the whole cargo was delivered. Held, reversing the judgment of the Court of Q. B., 9th May 1855 (Shee's Tenterden, 221; 3 W. R. 421, Q. B.), that there was no new contract entered into by the consignees presenting the bill of lading to the master, whereby the consignees could be found liable in damages for such detention of the ship: (Moller v. Young and vice versa, E. C., Nov. 26 or Dec. 5, 1855; Harrison's Digest, 234; 5 El. & Bl. 755; 2 Jur. N. S. 393; 25 L. J. 94, Q. B., Ex. Ch. ; 5 El. & Bl. 7; Jur. N. S. 924; 24 L. J. 217, Q. B.; Weekly Reporter, 149.) CONSOLIDATION OF ACTIONS. 891. Where actions were brought by several passengers against a steam-shipping company for supplying bad provisions, the court refused to stay proceedings in all the actions but one, thongh the company consented to be bound by the result of that one: (Westbrook v. Australian Steam Navigation Company, C. P., Nov. 21, 1853, Shipping Gazette.) 895. Forty-seven actions on a point of marine insurance consolidated in one: (The Oithona; Syers v. Pickersgill, C. E., Nov. 3, 1857, Shipping Gazette.) CONSTRUCTIVE TOTAL LOSS. I. OF CARGO. 896. Underwriters held not liable for a total loss on silk damaged by salt water, and sold at an intermediate port, although part of it might have been forwarded at a reasonable expense to its destination, it being insured free from particular average: (Narone v. Haddon, &c., C. P., Jan. 25, 1850; Harrison's Digest, 2015; 9 C. B. 30; 19 L. J. 161 C. P.; Arnould, 1128.) 897. Question as to expenses to be taken into account in estimating whether there is a constructive total less of goods: (Reimer, &c. v. Ringrose, Northern Circuit, York, March 20, also Rosetto v. Gurney, C. P., May 6, 7 and 30, 1851; 11 C. B. 176; 15 Jur. 1180; No. 2207 hereof.) 18:0; 898. Question as to constructive total loss of coals alleged to be so deteriorated as not to be worth sending on: (The Foundling; Heald, &c. v. Pickersgi 1, Northern Circuit, NewApril 18, 1857; and Michael v. Gillespie, 1856, 1857, 3 Jur. castle-on-Tyne, Shipping Gazette, March 11, 1857, and Q. B. N. S. 1219; 26 L. J. 306, C. P.; 2 C. B, N. S. 627, a case with reference to loss of freight on coals, which it was impracticable at a reasonable expense to send forward.) II. OF FREight. (See Arnould, 1137) 899. General principles of constructive total loss. If ship cannot be repaired except at a cost exceeding her actual value when repaired, that is a total loss. If a vessel can be repaired so as to bring home her entire cargo, and the cost of repairs would exceed the value of the freight, but not the value of the ship when repaired, there is not a total loss of ship or freight. The earning of freight is not to be total loss of ship. If the ship could be repaired only so as taken into view in considering a question of constructive to bring home part of her cargo, that would be a partial loss of freight: (The Alfred; Moss v. Smith, C. P., Feb. 7, 1850; Harrison's Digest, 2011; 9 C. B. 94; 14 Jur. 1003; 19 L. J. 225, C. P.; Arnould, 1146; report of case printed from the shorthand writer's notes, by J. Smith, 49, Long-acre, 427; Tudor's Leading Mar. Cases, 164.) ADM.] Ex parte GRITTEN, re GRITTEN-Re RIDER. 900. Verdict against underwriters for a total loss of freight where a vessel, bound from St. John's to Liverpool, struck on Soldier's Ledge, near Yarmouth (N. S.), and it was found that it would cost more than she would be worth to get her off and repair her: (The Perthshire; Robertson v. Provincial Mutual and General Insurance Company, St. John's, N. B.. Circuit Court, Dec. 26, 1855, Shipping Gazette, Jan. 16, 1856.) III. OF SHIP. 901. A Dutch ship, the "building cost" as well as the insured value of which was 80007., was driven on the Goodwin Sands, and towed into Ramsgate and ultimately to London, where the expense of necessary repairs was estimated on the part of the owners at 46157., and on the part of the underwriters at 35604. only. The ship when repaired would not have brought 40007. in this country, being a foreign ship, and would have brought much less in Holland from losing her original class or character there. A jury held it to be a total loss. The Court of Common Pleas afterwards decided that the judge rightly directed the jury that, "in considering the question of total loss, they ought not to look to the value in the policy, but if they thought, under all the circumstances, a prudent owner uninsured would not have repaired the ship, it was a total loss: (Turing v Young, et vice versa, C. P., Feb. 29, 1837; Harrison's Digest, 2010; 2 Scott N. R. 752; 2 M. & G. 593; Arnould, 1114; sce Tudor's Leading Mar. Cases, 160.) 901 a. Verdict against underwriters for total loss by sale of a ship so damaged that a prudent owner uninsured would not have repaired her. Alderson, B. directed the jury that, if they should decide it was an average and not a total loss, they were "to award the estimated cost of repair, deducting one-third new for old: (The Exchange; Taylor, &c., v. Lodge, Liverpool Assizes, April 5, 1839, Shipping Gazette.) 902. Ship not worth repairing, after having been ashore and sustained damage. Evidence given that the tim bers were in a very bad and rotten condition. Vessel condemned and sold, and cargo transhipped. Verdict of jury for a total loss. Parke, B. said that a loss was now held to be total if a vessel was, by dangers of the seas, so damaged that a prudent owner uninsured would not have incurred the expense of repairs: (The Princess Elizabeth; Hamilton, dc. v. Lodge, Liverpool Assizes, April 16, 1839, Shipping Gaze te.) 903. Underwriters held liable for a total loss, as a prudent owner would not have repaired the vessel on the ground that the cost of doing so at Madras would have come to more than she would be worth after repair: (Glen, de. v. Thompson, before Wightman, J., Liverpool Assizes, April 9, 1845 or 1846, Shipping Gazette.) 904. Verdict against underwriters for a total loss. Vessel sold at Monte Video, because repairs there would have cost more than she was afterwards worth: (Castleman v. Capper, C. E., Dec. 19, 1845, Shipping Gazette.) N.B.-The Lord Chief Baron, among other observations, sai, that when the ship is in a harbour, proper means must be taken to ascertain the extent of damage, and whether the ship is incapable of repair. On that ground the Court of Ex. afterwards granted a rule for a new trial. In Boyd v. Royal Exchange Assurance Company, Q. B., July 1816, Lord Denman said that nobody could question the principle so laid down. 905. Underwriters on ship held liable, the cost of the repairs being estimated at Mauritius, at more than the vessel would be worth when repaired. The vessel had sustained damage, and was in a partially decayed condition requiring certain parts to be replaced with new timber, but there was nothing to show the decayed timbers were not strong enough to have enabled the vessel, under ordinary circumstances, to have performed her voyage: (The Broxbournebury; Phillips and Tiplady v. Nairne, &c., C. P., Jan. 23, 26, May 8, July 3, 1846; Harrison's Digest, 2011; 4 C. B. 343; 11 Jur. 455; 16 L. J. 194, C. P.; 9 L. T. Rep. 295.) 906. A total loss of ship may imply that, although the vessel exists, yet she is lost to all practical purposes, as where a vessel is cast by the sea high and dry upon the shore, and can be got off only by means more expensive than the value of the vessel: (dictum of the Lord Chief Baron in The Lord Cochrane, C. E., Dec. 17, 1847, Shipping Gazette.) 907. Ship abandoned and sold by captain. Underwriters held not liable for loss, as the vessel, in the opinion of the jury, might have been got off the strand and repaired at Alexandria. The power of the master to sell is rigorously limited to cases of extreme necessity: (Alcock v. Royal Exchange Assurance Company, Q. B., Feb. 28 and April 20, 1848, Shipping Gazette. See No. 908.) 908. Ileld, that in considering the propriety of the sale of a ship, questions might be put tending to show that the captain was a habitual drunkard, and so incapable of forming a correct judgment: (Alcock v. Royal Exchange Assurance Company, Q. B., Jan. 29, 1849; 13 Q. B. 29; 13 Jur. 445; Arnould, 236, 1106. See No. 907.) 909. The Lord Chief Baron said, "it had been laid down that, even where a vessel had not gone to pieces, but was in her original form of a ship, although she had received such injury as to render the expense of repairing her more than she was worth, this would amount to a total loss:" [BANK. (Hanson and another v. Port of London Ship Loan and low. ance Company, Home Circuit, Hertford, July 12, 1849, Shipping Gazette.) 910. If there are no means of repairing a ship at the place where she is, that is a total loss: (dictum of Maule, J., in The Alfred; Moss v. Smith, C. P., Jan. 12, 14 and 17, 1850; 14 Jur. 1003; report of case printed from shorthand-writer's notes, 427.) 911. Notice of abandonment necessary in case of construc tive total loss: (The Pusey Holl; Knight v. Faith, June 11, 1850; 15 Q. B. 649; Arnould, 1037.) 911 a. An East Iudiaman, having been dismasted and otherwise damaged, was taken into Calcutta, where the cost of repairing her would have amounted to 10,5007, and her market value after repair would be only 90007, as it was also at the time when the insurance was effected. The was valued in the policy of insurance at 17,000l. Held, that the underwriters were liable for a constructive total loss. Although it was urged that the intrinsic value to her owners was more than 90007, the market value was the test of whether a prudent owner uninsured would repair her or not. Notice of abandonment was given by the owners on hearing the result of the surveys, and the ship remained unsold when the action was brought: (Irving v. Manning, H. of L., July 23, 1847; 2 C. B. 784; 1 H. of L. Cas. 817; Arnould, 1116) 912. Constructive total loss of ship under a tíme polier, Question as to inherent defective condition of ship : (The Thetis; Highens, &c. v. Stone, C. P., Dec. 22, 1857, Shipping Gazette.) (To be continued.) The court will not entertain an application for the release of a bankrupt from prison, whither he was taken upon a writ of capias to hold to bail. The application should be made to the court out of which the capias issued. Sargood renewed an application for the release of the bankrupt from prison. He had been arrested upon a capias to hold to bail. Upon the former occasion the court declined to order his release unless he found bail to the amount mentioned in the writ. He now tendered bail to that amount. Brandon (solicitor) appeared for the assignees. with Mr. Commissioner Holroyd, who agreed with him, Mr. Commissioner EVANS said, he had conferred that such an application ought not to be entertained by the commissioners in bankruptcy, but that it ought to be made to the court out of which the capias issued. Application refused. BANK.] NEW BRUNSWICK, &c. RAILWAY COMPANY v. CONYBEARE. (Before Mr. Commissioner GOULBurn.) Re JAMES GREEN. 24 of 25 Vicl. c. 134, s. 170-Release from custody under attachment for costs in Divorce Court Order of discharge drawn up. The bankrupt having his order of discharge drawn up and delivered out to him, under the 170th section of the Bankruptcy Act 1861, is entitled, under the 162nd section, to his release from custody under an attachment for costs of a suit in the Divorce Court, in which he was co-resp." [H. of L. or in equity which at adjudication, or afterwards before order of discharge, a bankrupt has in any copyhold or customary land, and to make an order vesting the land, or such estate or interest as the bankrupt has therein, in such person and in such manner as the court shall think fit. March 12.-His HONOUR.-This was an application for an order in exercise of the power given by the 114th section of the Bankruptcy Act 1861, disposing of the copyhold property of this bankrupt, and vesting it either in the assignee or some other person, to enable him to convey it to a person with whom the assignee had contracted to sell. The 114th section is a substitute for the 209th section of the Consolidation Act 1849 repealed. According to that section, the hold, and by a deed indented and enrolled convey it to a purchaser; and, according to the 210th section, which is not repealed, the purchaser is to compound with the lord of the manor for the accustomed fines, dues, and services. After consideration, I think that the 114th section of the Act of 1861, and the 210th section of the Act of 1849, being read together, enable the court to do that by a simple order which, before the statute of 1861, it could only do by means of a deed indented and enrolled. I think that, under the circumstances of this case, the proper course is for the solicitor to the assignee to apply for an order disposing of the copyhold to the purchaser, and vesting He now renewed his application under the 162nd it in him. This application should be supported by section of the Bankruptcy Act 1861, whereby it is affidavits, to satisfy the court that the property has provided that if a bankrupt, after the order of dis-been fairly sold, and for an adequate price; and even charge takes effect, be arrested or detained in custody for a debt, clain, or demand proveable under his bankruptcy, where judgment has been obtained before the order of discharge takes effect, the court, or a judge of a superior court of law shall, on proof of the order of discharge, and unless there appear good reason to the contrary, direct the officer who has the bankrupt in custody to discharge him, which shall be done accordingly without fee. Application for release.-The bankrupt, who was in custody under an attachment since the 30th Nov. 1861, for the costs of suit in the Divorce Court, in which he was co-resp. at the date of his bank-court, in a case like the present, was to sell the copyruptcy, passed his last examination and obtained his order of discharge on the 5th Feb. last, but remained in prison. He had previously applied for his release, which was refused on the ground that he was in custody upon one of the exceptions specified in the 112th section of the Consolidation Act 1849. He subsequently applied again for his release, but the court beng of opinion that the order of discharge, though granted, could not, under the 170th section of the Bankruptcy Act 1861, be drawn up until after the expiration of the time allowed for appeal and bear date as from that time, declined to interfere until the thirty days had expired. Taylor (solicitor) appeared for the detaining creditor. Mr. Commissioner GOULBURN, after referring to the 162nd section, expressed his opinion that the 162nd section applied to this case, and, in the absence of good reason to the contrary, he saw nothing to prevent the bankrupt having his release from custody. Ordered accordingly. COUNTY COURT, CHELTENHAM. (Before JAMES FRANCILLON, Esq., Judge.) 24 25 Vict. c. 134, s. 114-12 & 13 Vict. c. 106, s. 110-Sale of copyholds belonging to the bankrupt-Practice. The proper course under the 114th section of the Bankruptcy Act 1861, read together with the 210th section of the Consolidation Act 1849, is for the assignees to apply to the court, upon affidavits of a bond file offer for sale and adequacy of price, for an order to direct a sale of the property, and to sanction the proposed conditions. It should also appear that the purchase-money had been paid into the bank. Chesshyre (solicitor) applied under the 114th section of the Bankruptcy Act 1861 for an order confirming the sale of certain copyhold premises belonging to the bankrupt at the time of his bankruptcy, and which the creditors' assignee had of his own motion disposed of, and for the vesting of the bankrupt's interest in the premises in the creditors' assignee, or some other person, to enable him to convey to the purchaser. By the 114th section of the Bankruptcy Act 1861 it is enacted that the court shall have power to dispose for the benefit of the creditors of any cstate or interest at law then I should not make the order without proof of payment of the purchase-money into the bank. My impression is, that in any future case of the sort application ought to be made to the court on proper affidavits to direct a sale, and to sanction the proposed conditions. House of Lords. Reported by JAMES PATERSON, Esq., of the Middle Temple, Tuesday, Feb. 25. NEW BRUNSWICK, &c., RAILWAY COMPANY v. Joint-stock company-Fraud--Misrepresentations by A court of equity will not relieve on a general charge of fraud, but it must be alleged in what the fraud consists, and how it has been effected. If reports are made to the shareholders of a jointstock company by the directors, and adopted at one of the meetings of the company, and afterwards industriously circulated, the representations in those reports become after this adoption those of the company, and therefore binding on the company. And if those reports so circulated can be shown to be the proximate and immediate cause of shares being bought by individuals, the company cannot retain the benefit of the contract and keep the purchase money which has been paid. If an incorporated company, acting by its agent, induces a person to enter into a contract for the benefit of the company, that company can no more repudiate the fraudulent agent than an individual could repudiate him, and the company are bound by the misrepresentations of their agent. But the principle cannot be carried so far that an action can be brought against the company on the ground of deceit, because the directors have done an act which might render them liable to such an action: (per Lord Cranworth.) This was an appeal from a decree of the Lords Justices reversing a decree of V.C. Stuart, H. OF L.] NEW BRUNSWICK, &c. RAILWAY COMPANY v. CONY BEARE. [H. OF L G. L. Russell and Bushby, for the resp., contended that the misrepresentations were sufficiently alleged and were binding on the company: (Rawlins v. Wickham, 32 L. T. Rep. 231; Ranger v. Great Western Railway Company, 5 H. L. Cas. 72; National Exchang Company v. Drew, 2 Macq. Ap. 103.) The New Brunswick and Canada Railway and Land | contended that the bill did not contain allegating Company (Limited) were registered on the 25th Sept. sufficiently specific; that the misrepresentations alleged 1856, as a joint-stock company with limited liability, one were never made, but, if made, they were made under of its objects being to accept a transfer of the St. circumstances which disentitled the resp. to complain. Andrews and Quebec Railway Company, which was a company incorporated by an Act of the Legislature of the province of New Brunswick, for making a railway from St. Andrews in that province to Quebec in Lower Canada. The capital was to consist of 800,000l., divided into 40,000 shares of 207. each, of which 4000 were distinguished as class A. shares, and the holders were entitled to certain preferences, and among other things to certain certificates for allotment of land which had been granted by the Provincial Government of New Brunswick. On the 25th Aug. 1858 Mr. John Charles Cony beare proposed to the secretary of the company to purchase 200 of the class A. shares which had been issued, but which were liable to be forfeited for default in payment of calls, upon the following terms: that he should pay 101. 5s. per share (the same to be credited with the full amount of 127. per share), and also to pay in advance the amount of the future calls upon such shares, being a further sum of 8. per share, receiving upon all the calls so paid in advance interest at 6 per cent. There was also a condition that he should be forthwith elected a director. These conditions were agreed to by the directors, who intimated that upon the payment of the money including future calls he would be elected a director. On 9th Sept. 1858, Mr. Conybeare paid to the company 5651. 15s., the sum agreed, and the certificates for fifty-five shares were delivered to him. On the 29th Sept. 1858 he paid to them 11687. 10s. for 114 shares, and on the 4th Oct. 1858 he paid 3177. 15s. for thirty-one shares, and on the 8th Nov. 1858 he paid 1600l., being the future calls on 200 shares. Mr. Conybeare, on the purchase being completed, was elected a director and attended board meetings for about a month. On the 14th Feb. 1859 he filed a bill in the Court of Ch. against the company and directors and secretary, praying to have the contract for purchase of the shares rescinded and the purchase-money repaid, on the ground of fraud and misrepresentation. The bill contained no allegation of fraud by the directors personally, except by their having issued two printed reports, dated 31st Dec. 1857, and 29th July 1858, which reports, as he alleged, contained misrepresentations by which he was misled. The bill also charged certain misrepresentations by the secretary Mr. Byrne, to the effect that he had made representations similar to those in the report, and referred to the said reports as confirmations of his representations; that the said secretary had given to the plt. an incomplete set of colonial Acts to peruse, whereby the plt. was misled. The particular misrepresentations alleged to have been made to the plt. were: 1. That the app. had an indefeasible title to the lands granted by the Provincial Government of New Brunswick. 2. That a system had been adopted by the company in the province of New Brunswick of liquidating all claims against them every six weeks. 3. That the traffic on so much of the company's line as was then open exceeded the working expenses. 4. That there was no probability of any rival line being carried ont in New Brunswick. 5. That the apps. had power to grant lumbering licences upon the land granted by the Provincial Government. 6. That the directors had no reason to doubt their being able to finish the line within the capital and time assigned for its construction. Stuart, V. C., on the 14th Jan. 1860, dismissed the plt.'s bill, but without costs. The Lords Justices, on appeal, reversed this decree, and ordered that the contract should be rescinded. The company now appealed against the latter decree. Sir H. Cairns, Q.C. and Baggallay, Q.C., for the apps, The LORD CHANCELLOR.-My Lords, this is a casin which an appeal has been presented to your Lordships from an order made by the Lords Justices giving relief t the plt. by setting aside an executed contract, and directing certain consequences consequent thereon, to be rescinded, and declaring that the company is bound to take back the shares which had been sold to the plt. The original decree in this canse was made by V. C. Stuart dismissing the bill, but without costs. The V. C. was of opinion that no one of the charges contained in the bill had been substantiated. The case then went by appeal before the Lords Justices and was heard at great length, and en new evidence. From the judgment which was given it would appear as if the Lords Justices concurred in the conclusion of the V. C. on all points save two; on which two there is certainly no very definite expression of opinion on the part of those learned judges. One of those points appears to be this, that they seem to have considered that certain reports, dated in Dec. 1857 and in July 1858, handed over by the secretary of the company to the resp., with a representation, either direct or indirect, that these reports contained an accurate statement of the then existing condition of the company, they having been given by the secretary to the resp. in, I think, the month of Sept. 1858, about a twelvemonth after the making of one report and three months after the making of the other, were untrue. The other point in which the Lords Justices also do not express anything like a decided opinion, is an alleged representation made by the secretary of the company to the plt., that the company had an indefeasible title to certain lands; upon which the Lords Justices, in effect, say that they are unable to tell whether the company had a defeasible or an indefeasible title, but that they find that the company hare been advised by an eminent counsel that the title was defeasible; and, therefore, giving no opinion on the point, consequently not deciding whether the represen tation was true or false. The Lords Justices have mainly founded their decision upon that uncertain expression of opinion. My Lords, the nature of the case made by the plt. is, that the transaction ought to be rescinded on the ground of misrepresentation. Your Lordships are well aware that whenever an application is made to a court of equity to set aside a conveyance that has been made, the jurisdiction of the court of equity for the purpose must be founded on something amounting to fraud; and if the ground alleged be misrepresentation, either by the statement of what is false, or by the suppression of something that ought to have been disclosed, and so producing a false impression and conclusion, the case so alleged must be shown, according to the language of Lord Eldon, to amount to that which a court of equity holds to be fraud. But it is most essential, in the administration of justice in a court of equity, that the nature of the case, when it is constituted of fraud, should be most accurately and fully stated in the bill of the plt. My Lords, it is impossible to give relief merely upon a general charge that something has been done by a party, or has been obtained from a party under the influence of fraud. It must be shown in what the fraud consists, and how it has been effected; and if the frand is alleged to consist in certain representations which were untrue, and other facts are relied on for the purpose of showing H. OF L.] NEW BRUNSWICK, &c. RAILWAY COMPANY v. CONYBEARE. [H. OF L. that they are untrue, those facts must undoubtedly that kind. But, my Lords, it may not be necesconstitute a part of the case made by the plt. Now, sary to rest any decision of your Lordships upon baving generally adverted to these established princi- such considerations, because I will now beg your ples, I will invite your Lordships' attention for a few attention to the nature of the representations alleged in moments to the nature of the case that is made on the the bill. I think you will see that it would be impospart of the plt. The allegations of the bill are divisible sible, upon the most accurate sifting of the allegations into two parts, so far as they attempt to make out the in the bill, and the evidence in support of it, to arrive case of misrepresentation. One part of the allegations at the conclusion that there was any material misrepresubstantially amounts to this, that the misrepresentation made to the plt. which induced him to enter sentations on which the plt. relies were contained in into the contract in question. These representations two reports of Dec. 1857 and July 1858, given to are divided, as I have already said, into those that are hin by the secretary, to which I have already adverted. contained in the reports and those that are involved The other part of the case consists of a narrative of in conversations with the secretary. The representawhat was said or done by the secretary, and what tions contained in the reports, as stated by the resp., passed between the secretary and himself on the appear to be, first, a conclusion that he derived from occasion of two distinct interviews which he had with one of the reports, that there were no liabilities of the the secretary at the office. Now, in the first place, company because they were in the habit of paying for with regard to the reports that were produced to the everything with ready money. Now that is an interplt. by the secretary, I certainly am not at all disposed pretation which he put upon a particular passage in to advise your Lordships to throw any doubt upon this one of the reports a passage which, it appears to me, doctrine, that if the reports are made to the share- he has entirely misconstrued; for, without entering holders at one of these appointed meetings of the into any very accurate investigation as to the meaning company, and these reports are afterwards industriously of the word "liquidation," your Lordships will at once circulated, undoubtedly representations contained in see, by referring to the passage in the report, that it is those reports must be taken, after their adoption, to utterly impossible that any man could have understood be representations and statements made with the it as implying that the accounts were paid in New authority of the company, and therefore binding the Brunswick every six weeks. The object of the passage company. Neither, my Lords, do I think it would be is clearly this to show to the shareholders that the at all expedient to question this conclusion, that if amount of the liabilities of the company for the works those reports have been industriously circulated, and in New Brunswick were ascertained every six weeks. be clearly shown to have been the proximate and And the next line, after speaking of the liquidation, immediate cause of shares having been bought from the goes on to make this remark-"so that when the company by any individuals, or subscribed for by any accounts are sent to England and settled, there will no individuals, undoubtedly it will be impossible, con- longer be any debt." Now it is perfectly clear, from sistently with the principles of equity, to permit the these particular words in connection with the pass ge company to retain the benefit of that contract, and to in the antecedent line which speaks of the liquidation keep the purchase-money that has been so paid. There of the accounts in New Brunswick, what was represented may be a very different consideration applied to the was something different from the settlement of same transaction in a court of law and in a court of the accounts in England. I think it impossible equity, because when an attempt is made in a court to impute to the report any intention of repreof law to render a party liable in damages for certain senting to the shareholders, much less to the consequences of a misrepresentation, it is necessary to public, that all the debts incurred in New Brunswick prove that the individual was aware at the time of the were duly and regularly paid every six weeks. I think, falsehood of the representation, or ought to have been therefore, that the first ground which is brought so aware. But with regard to a claim for the restitu- forward by the plt. in his bill, and which was so tion of property acquired through false representations brought forward some time after he must have been well made by an individual acting in the capacity of agent, aware of the truth of the facts, is not a ground upon although the company were no parties to those repre- which misrepresentation can be rested. The other part sentations, and did not distinctly authorise them, it of the report which is referred to is that in which it is would still appear to be inconsistent with natural represented that the traffic on the portion of the line justice to permit property acquired by the company which was then opened exceeded the working expenses. through the medium of those representations to be Now, that is contained in the report of 1857; and I retained by them. So far, therefore, as these reports must say, with all respect, that I cannot concur in the are concerned, they must be taken, I think, to be remark of the Lords Justices that the handing over to the representations made by the company. I will presently plt. the repot made in 1857, containing the statement, invite your Lordships' attention to what are the state without more, in the month of Sept. 1858, ought to ments contained in those reports. But passing on to have been taken by him as amounting to a statement the second head of the plt.'s case I beg your Lordships to that that was the condition of things at the time when observe, that great danger would ensue if a concluded that report was handed over. There is no such allegatransaction of this kind were permitted to be afterwards tion contained in the bill, and unless there was a defiquestioned, upon the ground of some other general nite statement to that effect, no man in his senses conversation passing between the individual and the would arrive at the conclusion that because a report secretary of the company at the office of the company. which was made in Dec. 1857 was given to him in This gentleman appears to have gone to the office of Sept. 1858, therefore a representation with regard to the secretary for the purpose of making inquiries. He the traffic on the line, made in Dec. 1857, must of represents himself to have been received with great necessity, without more, be taken to be a representation courtesy by the secretary, and a conversation to have repeated in the month of Sept. 1858. My Lords, I taken place between them. But there are no allega- must here particularly beg your Lordships' attention to tions in the bill which at all tend to show that repre- the fact that there is no charge whatever in this bill sentations were made by the secretary to the plt. with that when these reports were given to this gentleman a view to any definite statement made by the plt. that they were accompanied by any definite or certain he wanted to purchase shares in the company, and statement by the secretary that the representations conwould be induced to do so, or not, in consequence of tained in those reports were accurate and truthful what he might be told by the secretary. It would representations of the then existing state of circumbe exceedingly dangerous to hold the company liable stances. Now, what the company says in answer to in consequence of a loose general conversation of that particular charge appears to be true, namely, that |